In practice. The name of a common-law form of action ex contractu, which lies for the recovery of damages for breach of a covenant, or contract under seal. Stickney v. Stickney, 21 N. H. ^68.
In the law of contracts. An agreement, convention, or promise of two or more parties,
More... In practice. The name of a common-law form of action ex contractu, which lies for the recovery of damages for breach of a covenant, or contract under seal. Stickney v. Stickney, 21 N. H. ^68.
In the law of contracts. An agreement, convention, or promise of two or more parties, bp deed in writing, sigued, sealed, and delivered, by which either of the parties pledges himself to the other that something is either done or shall be done, or stipulates for the truth of certain facts. Sabin v. Hamilton, 2 Ark. 490; Com. v. Robinson. 1 Watts (Pa.) 160; Kent v. Edmondstou, 49 N. C 529.
An agreement between two or more parties, reduced to writing and executed by a sealing and delivery thereof, whereby some of the parties named therein engage, or oiie of them engages, with the other, or others, or some of them, therein also named, that some act hath or hath not already been done, or for the performance or non-performance of some specified duty. De Bolle v. Insurance Co.," 4 Whart. (Pa.) 71, 33 Am. Dec. 38.
Classification. Covenants may be classified according to several distinct principles of division. According as one or other of these is adopted, they are:
Express or Implied; the former being those which are created by the express words of the parties to the deed declaratory of their intention, while implied covenants are those which are inferred by the law from certain words in a deed which imply (though they do not express) them. Express covenants are also called covenants "in deed," as distinguished from covenants "in law." McDonough v. Martin. 88 Ga. 675, 16 S. B. 59, 18 U R. A. 343; Conrad v. Morehead, 89 N. C. 31; Garstang v. Davenport, 90 Iowa, 359, 57 N. W. 876. , ; "
Dependent, concurrent, and independent. Covenants are either dependent, concurrent, or mutual and independent. The first depends on the prior performance of some act or condition, and, until the condition is performed, the other party is not liable to an action on his covenant. In the second, mutual acts are to be performed at the same time: and If one party is ready, and offers to perform bis "part, and the other neglects or refuses to perform his, he who is reafiy and offers has fulfilled his engagement, and may maintain an action for the default of the other, though it is pot certain that either is obliged to do the first act. ,The third .sort is where either party may recover damages from the other for tne injuries he may have received by a breach of the covenants in his favor; and it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. Bailey v. White, 3 Ala. 330; Tompkins v. Elliot, 5 Wend. (N. Y.) 497; Gray v. Smith (C. C.) 76 Fed. 534.
Principal and auxiliary; the former being those which relate directly to the principal matter of the contract entered into between the parties; while auxiliary covenants are those which do not relate directly to the principal matter of contract between the. parties, but to something connected with it.
Inherent and collateral; the former being such as immediately affect the particular property, while the latter affect some property collateral thereto or some matter collateral to the grant or lease. A covenant inherent is one .which is conversant about the land, and knit to the estate in the land; as, that the thing demised shall be quietly enjoyed, shall be kept in repair, or shall not be aliened. - A covenant collateral is one which is conversant about some collateral thing that doth nothing at all. or not so immediately, concern the thins granted; as to pay a sum of money in gross, etc. Shep. Touch. 161.
Joint or several. The former bind both or all the covenantors together; the latter bind each of them separately. A covenant may be both joint and several at the same time, as regards the covenantors; but," as regards the covenantees, they cannot be joint and several for one and the same cause, (5 Coke, IDs*,) but must be either joint or several only. Covenants are usually joint or several according as the interests of the covenantees are such; but the words of the covenant, where they are unambiguous, will decide, although, where they are ambiguous, the nature of the interests as being joint or several is left to decide,. Brown. See
Capen v. Barrows, 1 Gray (Mass.) 379; In re Siingsby, 5 Coke, 18b.
General or specific. The former relate to land generally and place the covenantee in the position of a specialty creditor only; the latter relate to particular lands and give the covenantee a lien thereon. Brown.
Executed or executory; the former being such as relate to an act already performed; while the latter are those whose performance is to be future. Shep. Touch. 161.
Affirmative or negative; the former being those in which the party binds himself to the •existence of a present state of facts as represented or to the future performance of some act; while the latter are those in which the covenantor obliges himself not to do or perform rsome act.
Declaratory or obligatory; the former being those which serve to limit or direct uses; while the latter are those which are binding on the party himself. 1 Sid. 27; 1 Keb. 337.
Real and personal. A real covenant is one which binds the heirs of the covenantor and passes to assignees or purchasers; a covenant the obligation of which is so connected with the realty that he who has the latter is either entitled to the benefit of it or is liable to perform it; a covenant which has for its object something annexed to, or inherent in, or connected with, land or other real property, and runs with the land, so that the grantee of the land is invested with it and may sue upon it for a breach happening in his time. 4 Kent, Comm. 470; 2 Bl. Comm. 304; Chapman v. Holmes, 10 N. J. Law, 20; Skinner v. Mitchell, 5 Kan. App. 366, 48 Pac 450; Oil Co. v. Hinton, 159 Ind. 396,64 N. E. 224; Davis v. Lyman, 6 Conn. 249. In the old books, a covenant real is also defined to be a covenant by which a man binds himself to pass a thing real, as lands or tenements. Termes de la Ley; 3 Bl. Comm. 156; Shep. Touch. 161. A personal covenant, on the •other hand, is one which, instead of being a charge upon real estate of the covenantor, only binds himself and his personal representatives in respect to assets. 4 Kent, Comm. 470; Carter v. Denman, 23 N. J. Law, 270; Hadley v. Bernero, 97 Mo. App. 314, 71 S. W. 451. The phrase may also mean a covenant which is personal to the covenantor, that is, one which he must perform in person, and cannot procure another person to perform for him.
Transitive or intransitive; the former being those personal covenants the duty of performing which passes over to the representatives of the covenantor; while the latter are those the duty of performing which is limited to the covenantee himself, and does not pass •over to his representative. Bac. Abr. Cov.
Disjunctive covenants. Those which are for the performance of one or more of several things at the election of the covenantor or covenantee, as the case may be. Piatt, Cov. 21.
Absolute or conditional. An absolute covenant is one which is not qualified or limited by any condition.
The following compound and descriptive terms may also be noted:
Continuing covenant. One which indicates or necessarily implies the doing of stipulated acts successively or as often as the occasion may require; as, a covenant to pay rent by installments, to keep the premises in repair or insured, to cultivate land, etc. Mc-Glynn v. Moore, 25 Cal. 395.
Full covenants. As this term is used in American law, it includes the following: The covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, sometimes for further assurance, and almost always of warranty, this last often taking the place of the covenant for quiet enjoyment, and Indeed in many states being the only covenant in practical use. Rawle, Cov. for Title, $ 21.
Mutual covenants. A mutual covenant is one where either party may recover damages from the other for the injury he may have received from a breach of the covenants in his favor. Bailey v. White, 3 Ala. 330.
Separate covenant. A several covenant; one which binds the several covenantors each for himself, but not jointly.
Usual covenants. An agreement on the part of a seller of real property to give the usual covenants binds him to insert in the grant covenants of "seisin," "quiet enjoyment," "further assurance." "general warranty," and "against incumbrances." Civ. Code Cal. J 1733. See Wilson v. Wood, 17 N. J. Eq. 216. 88 Am. Dec. 231; Drake v. Barton, 18 Minn. 467 (Gil. 414). The result of the authorities appears to be that in a case where the agreement is silent as to the particular covenants to he inserted, in the lease, and provides merely for the lease containing "usual covenants," or, which is the same thing, in an open agreement without any reference to the covenants, and there are no special circumstances justifying the introduction of other covenants, the following are the only ones which either party can insist upon, namely: Covenants by the lessee (1) to pay rent; (2) to pay taxes, except such as are expressly
Sayable by the landlord; (3) to keep and de-ver up the premises in repair; and (4) to allow the lessor to enter and view the state of repair; and the usual qualified covenant by the lessor for quiet enjoyment by the lessee. 7 Ch. Div. 561.
Specific covenants.—Covenant against incumbrances. A covenant that there are no incumbrances on the land conveyed; a stipulation against all rights to or interests in the land which may subsist in third persons to the diminution of the value of the estate granted. Bank v. Parisette, 68 Ohio St. 450, 67 N. E. 896; Shearer v. Ranger, 22 Pick. (Mass.) 447; Sanford v. Wheelan, 12 Or. 301. 7 Pac. 324. —Covenant for further assurance. An undertaking, in the form of a covenant, on the part of the vendor of real estate to do such further acts for the purpose of perfecting the purchaser's title as the latter may reasonably require. This covenant is deemed of great importance, since it relates both to the title of the vendor and to the instrument of conveyance to the vendee, and operates as well to secure the performance of all acts necessary for supplying any defect in the former as to remove all objections to the sufficiency and security of the latter. Piatt, Cov.; Rawle, Cov. || 98, 99. See Sugd. Vend. 500; Armstrong v. Darby, 26 Mo. 520.—Covenant for quiet enjoyment. An assurance against the consequences of a defective title, and of any disturbs noes thereupon. Piatt, Cov. 312; Rawle, Cov. 125. A covenant that the tenant or. grantee of an estate shall enjoy the possession of the premises in peace and without disturbance by hostile claimants. Poposkey v. Munkwitz, 68 Wis. 322, 32 N. W. 35, 60 Am. Rep. &58; Stewart v. Drake. 9 N. J. Law, 141; Kane v. Mink, 64 Iowa, 84, 19 N. W. 852: Chestnut v. Tyson, 105 Ala. 149, 16 South. 723, 53 Am. St. Rep. 101; Christy v. Bedell, 10 Kan. App. 435, 61 Pac. 109& —Covenants for title. Covenants usually inserted in a conveyance of land, on the part of the grantor, and binding him for the completeness, security, and continuance of the title transferred to the grantee. They comprise "covenants for seisin, for right to convey, against Incumbrances, or quiet enjoyment, sometimes for further assurance, and almost always of warranty." Rawle, Cov. f 21.—Covenants in gross. Such as do not run with the land.— Covenant not to sue. A covenant by one who had a right of action at the time of making it against another person, by which he agrees not to sue to enforce such right of action.—Covenant of non-claim. A covenant sometimes employed, particularly in the New England states, and in deeds of extinguishment of ground rents in Pennsylvania, that neither the vendor, nor his heirs, nor any other person, etc, shall claim any title in the premises conveyed. Rawle, Cov. $ 22, -Covenant of right to convey. An assurance by the covenantor that the grantor has sufficient capacity and title to convey the estate which he by his deed undertakes to convey.—Covenant of seisin. An assurance to tbe purchaser that the grantor has the very estate in quantity and quality which he purports to convey. 11 East, 641; Rawle, Cov. § 58. It is said that the covenant of seisin is not now in use in England, being embraced in that of a right to convey; but it is used in several of the United States. 2 Washb. Real Prop. *648; Pecare v. Chouteau, 13 Mo. 527; Kincaid v. Brittain, 5 Sneed (Tenn.) 121; Backus v. McCoy, 3 Ohio, 221, 17 Am. Dec. 585; De Long v. Sea Girt Co., 65 N. J. Law, 1. 47 Atl. 491.—Covenant of warranty. An assurance by the grantor of an estate that the grantee shall enjoy the same without interruption by virtue of paramount title. King v. Kilbride, 58 Conn. 109, 19 Atl. 519; Kincaid v. Brittain, 5 Sneed (Tenn.) 124; King v. Kerr, 5 Ohio, 155. 22 Am. Dec. 777; Chapman v. Holmes, 10 N. J. Law, 26.—Covenant running with land. A covenant which goes with the land, as being annexed to the estate, and which cannot be separated from the land, and transferred without it. 4 Kent, Comm. 472, note. A covenant is said to run with the land, when not only the original parties or their representatives, but each successive owner of the land, will be entitled to its benefit, or be liable (as the case may be) to its obligation. 1 Steph. Comm. 455. Or, in other words, It is so called when either the liability to perform it or the right to take advantage of it passes to the assignee of the land. Tillotson v. Prichard, 60 Vt. 94. 14 Atl. 302, 6 Am. St. Rep. 95; Spencer's Case, 3 Coke, 31; Gilmer v. Railway Co., 79 Ala. 572, 58 Am. Rep. 623; Conduitt v. Ross, 102 Ind. 166, 26 N. E. 198.—Covenant to convey. A covenant by which the covenantor agrees to convey to the covenantee a certain estate, under certain circumstances.— Covenant to stand seised. A conveyance adapted to the case where a person seised of land in possession, reversion, or vested remainder, proposes to convey it to his jvife, child, or kinsman. In its terms it consists of a covenant by him, in consideration of his natural love and affection, to-stand seised of the land to the use of the intended transferee. Before the statute of uses this would merely have raised a use in favor of the covenantee; but by that act this use is converted into the legal estate, and the covenant therefore operates as a conveyance of the land to the covenantee. It is now almost obsolete. 1 Steph. Comm. 532; Williams, Seis. 145; French v. French, 3 N. H. 281; Jackson v. Swart, 20 Johns. (N. Y.) 85.
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